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Employees and their advocates can rejoice in a recent New Jersey Supreme Court decision:  Joel S. Lippman, M.D. v. Ethicon, Inc. and Johnson & Johnson, Inc.

Joel S. Lippman (“Lippman”), a medical doctor, was employed by Ethicon, Inc. (“Ethicon”), a manufacturer of surgical devices, from July 2000 until his termination in May 2006.  As its Worldwide Vice President of Medical Affairs and Chief Medical Officer, Lippman was responsible for the overall safety of Ethicon’s medical products.  Specifically, he was charged with the task of assessing potential health risks associated with the company’s products and recommending corrective measures to address such risks.

Throughout his employment with Ethicon, Lippman, on numerous occasions objected to the proposed and continued sale and distribution of certain Ethicon products that he viewed as medically unsafe.  On one occasion, immediately preceding his termination, Dr. Lippman strongly advocated the recall of DFK-24, a device used during cardiopulmonary bypass surgery.  After receiving reports of the device failing during surgery, Dr. Lippman believed the DFK-24 to be dangerous and felt that a recall was proper.  However, Ethicon’s executives and board members disagreed with Lippman and terminated his employment approximately one month later.

Lippman then sued Ethicon under the Conscientious Employee Protection Act (“CEPA”) for firing him for his whistleblowing activities.  He identified his CEPA protected activities as objecting to the sale and distribution of numerous Ethicon products as being “dangerous” under the federal Food, Drug and Cosmetic Act and requesting their immediate recall from the market.  Ethicon asserted that Lippman was terminated as a result of an inappropriate relationship with someone whom he supervised.  The trial court dismissed Lippman’s CEPA claim, finding that it was his job to bring forth issues regarding product safety and therefore did not constitute “protected activity” for purposes of CEPA liability.

On appeal, the Appellate Division in rejecting the trial court’s exception for watchdog employees, reasoned that CEPA’s definition of an “eligible employee” does not limit the statute’s protection based on either job title or function and thus included all employees, including those with a “watchdog” role.  The appellate court pointed out that watchdog employees are the ones in most need of the protections afforded under CEPA.  However, the Appellate Division created additional requirements that a watchdog employee must fulfill in order to establish a prima facie CEPA claim, including a showing that s/he pursued and exhausted all internal means of securing compliance before bringing the claim.

On July 15, 2015, the New Jersey Supreme Court upheld the Appellate Division’s inclusion of watchdog employees under CEPA’s protections.  However, it disagreed with the added requirements articulated by the Appellate Division for watchdog employees to establish a prima facie CEPA claim.  The Court ruled that unless the legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking the same protection.  Thus, following the New Jersey Supreme Court’s ruling, there is no distinction between a watchdog employee and any other employee under CEPA.  Because of this ruling, all “watchdog” employees can now take comfort in blowing the whistle without fear of reprisal and/or unlawful dismissal.

 

By Sally A. Sattan, Esq. and Ty Hyderally, Esq.

 

 

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